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Thursday, September 11, 2008

Email in from Dr. Richard Cordero:

Judicial-Discipline-Reform.org

2nd Newsrelease

Judges’ unaccountability for judicial and non-judicial acts

will be fostered at the secret Judicial Conference, September 15-17

The Judicial Conference of the U.S. is the highest court administration policy-making body of the Federal Judiciary. It will hold its secret annual meeting next September 16-17: First Chief Justice John Roberts will preside over its plenary session at the Supreme Court, (202)479-3011 and -3211. Then the 12 representative district judges and the 14 chief circuit and national court judges will hold separate meetings at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, in Washington, D.C. There the Conference committees meet on Monday and the secretariat is maintained by the Administrative Office of the U.S. Courts, (202) 502-2400; http://www.uscourts.gov/.

The Judiciary, just as Congress and the Presidency, was created by “We, the People” of a democratic society that is founded on the openness of access and transparency of activity of government to the governed. What is more, the aspect of government entrusted to the Judiciary, namely, justice, demands that it be administered in public so that the people can ascertain whether it satisfies its essential requirements of equality, reasonableness, and predictability. Those requirements are not limited to a courtroom open to everybody. The public administration of justice demands that they also be satisfied during the formulation of policy and procedural rules by the judges, who subsequently apply them in their courtrooms.

However, the judges’ input in their formulation before and at the behind-closed-door Conference is secret. About six months later, a sanitized report of the Conference is issued by the Administrative Office. (id. >Judicial Conference >Proceedings) This is as if Congress never held in public any plenary or committee sessions; as if the President never allowed journalists to attend oval office or cabinet meetings; and as if they only sent to a press conference a spokesperson with a scripted story of what occurred at those sessions or meetings. Such secrecy would foster what it actually has in the Judiciary and is so cherished to judges: unaccountability for both judicial and non-judicial acts, hence, the totality of judicial conduct.

Judges’ unaccountability for judicial acts assignable as error on appeal

Judicial acts consist of the rulings, orders, findings, and judgments that judges make to dispose of controversies brought by parties before them. Judges are not accountable for those acts. A party can only assign the acts as error on appeal. But even if the appellate judges reversed all the judicial acts of a judge, no harm would come to him –or her-: His pay cannot be reduced while in office and only Congress can impeach and remove him from there. Likewise, his promotion to a higher court or status does not depend on his peers’ assessment of his performance; only the President and the Senate can so promote a judge.

Moreover, a judge’s judicial acts are overwhelmingly more likely to stand than be reversed on appeal. To begin with, an appeal requires an enormous amount of effort and time and can cost from tens of thousands to millions of dollars. Then the appellate judges can dismiss the appeal or rubberstamp the act “Affirmed” in a summary order. The latter disposes of the appeal without any statement of reasons, without precedential value, and some circuits may not even allow it to be cited. According to the Handbook of the Court of Appeals for the 2nd Circuit (CA2), “Approximately 75% of all cases are decided by summary order [, which] have no precedential authority.” http://www.ca2.uscourts.gov/clerk.htm >2nd Circuit Handbook, pg17

Reversing a judicial act on appeal requires appellate judges to begin with to read the briefs, then to discuss what the peer below did, conclude that it constituted reversible error, and explain what the error was so that on remand it may not be repeated. That defeats the purpose of summary orders, which is skip-it-all expediency. Thus, the overwhelming majority of summary orders is used to get rid of appeals brought by individuals representing themselves, i.e., pro se. Indeed, in 2005 CA2 bragged that “We know of no other Federal Appeals Court that allows pro se litigants other than incarcerated prisoners to argue.” http://www.ca2.uscourts.gov/Reports /05/2005%20Annual%20Report%20-%20FINAL.htm >Statistics>pg111. Pro se litigants, almost by definition the poor, get unaccountable, unreviewable judges who indulge in any judicial act.

Judges’ unaccountability for non-judicial acts impugned in complaints

Judges’ non-judicial acts can be challenged by any person, including a party, filing a complaint under the Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§351-364) with the respective chief circuit judge. They include “conflict of interests, bribery, corruption, abuse of judicial power, bias, prejudice, incompetence, neglect, undue decisional delay, demeanor, mental or physical disability”. In the 1997-2006 period, 7,462 complaints were filed, but the judges appointed only 7 investigative committees and disciplined only 9 of their peers. They dismissed out of hand without any investigation 99.88% of all complaints! (See links to the official statistics in the a-h notes under their graphic illustration at http://Judicial-Discipline-Reform.org .)

This is in line with the fact that of all the thousands of federal judges that have served –just now 2,180 judicial officers are subject to the Act-, in the 219 years since the creation of the Federal Judiciary in 1789, the number of those impeached and removed from the bench is 7! (id.) On average, that is 1 every 31 years, which is longer than the average length of service of judges. They can indulge in any non-judicial act too, for judges hold themselves totally unaccountable.

A complaint for reporters to test judges’ unaccountability at the Judicial Conference

To prove it, a complaint was filed last June 9 against a WBNY bankruptcy judge for his participation in a bankruptcy fraud scheme under the cover of district and circuit judges. It has been brought to the attention of Chief Justice Roberts and each of the other Conference members. They were requested to use the “informal means of disposing of complaints” –which they included in the Rules that they adopted for implementing the Act- to persuade CA2 Chief Judge Dennis Jacobs to apply the Act and the Rules to appoint a committee to investigate the complaint. The Conference Secretariat has stated that the members do not have authority to do so. (id.)

Thus, the judges shirk their collegial responsibility for the integrity of the Judiciary and judicial process by pretending that they cannot recommend informally to a peer to appoint a committee to investigate the filed evidence of a judicially supported bankruptcy fraud scheme so that they can dismantle it. Yet, they can and systematically do dispose of 99.88% of all complaints by means as informal as a chief judge suggesting to a complained-about judge over lobster and whisky at a sponsor-paid judicial junket to be less obvious when engaging in the acts cited in the all but dismissed complaint, even if dealing with bribery, conflict of interest, and abuse of power.

The Judicial Conference on September 16 and 17 offers the opportunity, especially to reporters and investigative journalists, to contact the judges (names and phone numbers at id. note h) before or at their hotels in D.C. to interview them about their justification for placing themselves in practice through their unaccountability for their judicial and non-judicial actswhere no person is entitled to be in a democratic society governed by the rule of law: Above the law.